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Lord Justice Birss’ dissenting judgment offered a workaround to a deficiency in the UK patents system, argues David Brinck of EIP.
The judgment by the English Court of Appeal regarding the DABUS case, addressing the patenting of inventions “invented” by artificial intelligence (AI), is distinguished by a dissenting judgment by Lord Justice Birss that on one hand criticises the arguments presented by appellant for the patenting of such inventions, and on the other hand, sets out arguments why the patenting of such inventions is compatible with current legislation in the UK.
To recap, the appeal relates to the deemed withdrawal of two UK patent applications naming an AI machine, Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), as the inventor for failing to comply with the requirements in section 13 of the UK Patents Act 1977 to identify a person as an inventor and to establish how the applicant, Stephen Thaler—the owner of DABUS—derived the right to be granted the patent.
The two patent applications were directed to a food container and a form of flashing light. It was not in dispute that the requirements of novelty and inventive step were satisfied for the two patent applications.
DABUS, AI, EIP, Lord Justice Birss, patent application, novelty, inventive step, UKIPO, oral argument, Thaler, framework, legislative changes